[Federal Register Volume 76, Number 44 (Monday, March 7, 2011)]
[Rules and Regulations]
[Pages 12292-12293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5109]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 101207606-1138-02]
RIN 0648-XA082


Listing Endangered and Threatened Species: Correction To Codify 
in the Code of Federal Regulations Application of Take Prohibitions to 
the Upper Columbia River Steelhead Distinct Population Segment

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule; correcting amendment.

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SUMMARY: We, NMFS, announce a correcting amendment to the Code of 
Federal Regulations to clarify that take prohibitions under section 
4(d) of the Endangered Species Act of 1973 (ESA) apply to the Upper 
Columbia River steelhead distinct population segment (DPS).

DATES: Effective March 7, 2011.

FOR FURTHER INFORMATION CONTACT: For further information regarding this 
notice contact Eric Murray, NMFS, Northwest Region, 503-231-2378; or 
Marta Nammack, NMFS, Office of Protected Resources, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background and Correcting Amendment

    We first listed the Upper Columbia River steelhead DPS under the 
ESA in 1997 as an endangered species (62 FR 43937; August 18, 1997). In 
January 2006, we conducted a status review and downgraded the DPS's 
status to threatened (71 FR 834; January 5, 2006). We published 
proposed and final rules applying ESA section 4(d) protections to the 
DPS on June 14, 2004 and February 1, 2006, respectively (69 FR 33102; 
71 FR 5178). In 2007, a Federal district court set aside the downgraded 
listing; however, in 2009, the Ninth Circuit Court of Appeals reversed 
the district court's decision, thereby reinstating the January 2006 
threatened listing and February 2006 protective regulations. On August 
24, 2009, we published a Federal Register document summarizing the 
results of the litigation and the ESA status reviews and clarifying 
that the January 2006 threatened listing and February 2006 protective 
regulations remain in effect for the DPS (74 FR 42605).

[[Page 12293]]

    In our August 2009 Federal Register notice, we explained that, due 
to a previous clerical error, the Upper Columbia River steelhead DPS 
had been inadvertently dropped from the enumeration of threatened 
species at 50 CFR 223.102(c). The August 2009 notice included a 
correcting amendment to reinstate the Upper Columbia River steelhead 
DPS to our list of threatened species at 50 CFR 223.102(c)(25). That 
correcting amendment, however, failed to update the cross-references at 
50 CFR 223.203, which identifies the threatened anadromous fish subject 
to protections under ESA section 4(d). This correcting amendment 
remedies that oversight.

Classification

    The Assistant Administrator finds good cause under 5 U.S.C. 
553(b)(B) to waive prior notice and opportunity for public comment, 
because it is impracticable, unnecessary, and contrary to the public 
interest. NMFS fully intended the Upper Columbia River steelhead DPS to 
be subject to the ESA section 4(d) protections and expressly stated 
this intent in the February 2006 final rule. NMFS also previously 
provided public notice in the Federal Register and considered public 
comments on the 2006 final rule. However, due to a clerical error, the 
conforming change is not currently reflected in the regulations. In 
order to avoid regulatory confusion and ensure continuous protections 
and enforcement capability for the Upper Columbia River steelhead DPS, 
the Assistant Administrator waives the requirement for prior notice and 
opportunity for public comment.
    For the same reasons above, the Assistant Administrator finds good 
cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effectiveness and makes this rule effective immediately upon 
publication.
    Because notice and opportunity for comment are not required 
pursuant to 5 U.S.C. 553 or any other law, the analytical requirements 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are 
inapplicable. Therefore, a regulatory flexibility analysis is not 
required and has not been prepared.
    It has been determined that this rule is not significant for 
purposes of Executive Order 12866.

References

    Copies of previous Federal Register notices and related reference 
materials are available on the Internet at http://www.nwr.noaa.gov, or 
upon request (see FOR FURTHER INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: March 1, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Fisheries for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set forth in the preamble, 50 CFR part 223 is 
corrected by making the following correcting amendment:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543.


0
2. In Sec.  223.203, paragraphs (a) and (b) are revised to read as 
follows:


Sec.  223.203  Anadromous fish.

* * * * *
    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA 
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to fish 
with an intact adipose fin that are part of the threatened species of 
salmonids listed in Sec.  223.102(c)(3) through (c)(25).
    (b) Limits on the prohibitions. The limits to the prohibitions of 
paragraph (a) of this section relating to threatened species of 
salmonids listed in Sec.  223.102(c)(3) through (c)(25) are described 
in the following paragraphs (b)(1) through (b)(13):
* * * * *
[FR Doc. 2011-5109 Filed 3-4-11; 8:45 am]
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